E.E.O.C. v. Agro Distribution LLC

• Citation: 555 F.3d 462
• Decision Date: 15 January 2009
• Docket Number: No. 07-60447.,07-60447.
• Parties: EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff-Appellant, v. AGRO DISTRIBUTION, LLC, Defendant-Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

555 F.3d 462

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff-Appellant, v. AGRO DISTRIBUTION, LLC, Defendant-Appellee.

No. 07-60447.

United States Court of Appeals, Fifth Circuit.

January 15, 2009.

Elizabeth Ellen Theran (argued), U.S. EEOC, Washington, DC, for Plaintiff-Appellant.

Herbert C. Ehrhardt (argued), Bethany Brantley Johnson, Ashley Eley Cannady, Ogletree Deakins, Ridgeland, MS, for Defendant-Appellee.

Rae Thiesfield Vann, Norris, Tysse, Lampley & Lakis, LLP, Washington, DC, for Amicus Curiae.

Appeal from the United States District Court for the Southern District of Mississippi.

Before JONES, Chief Judge, and GARWOOD and SMITH, Circuit Judges.

EDITH H. JONES, Chief Judge:

The Equal Employment Opportunity Commission brought suit against Agro Distribution, LLC ("Agro") for violating the Americans with Disabilities Act ("ADA") by failing to provide a reasonable accommodation to Henry Velez ("Velez") and by terminating his employment on the basis of his disability. The district court dismissed the suit and awarded approximately $225,000 attorneys' fees and costs to the defendant. The EEOC appeals this dismissal and award. Because Velez is not disabled within the meaning of the ADA, Agro did not refuse to provide reasonable accommodation, and this suit lacked foundation following Velez's deposition, we AFFIRM.

I. BACKGROUND

Henry Velez testified that he suffers from a medical condition called anhidrotic ectodermal dysplasia, a condition that may be accompanied by an absence of sweat glands. Velez was born with this condition and has never sweated.¹ Being unable to perspire, in hot weather, he must cool himself with water or a fan more frequently than the average individual.

Despite this condition, Velez has worked at manual labor in Mississippi and Louisiana for his entire life. He worked at an un-air-conditioned body shop; his duties included manually removing car parts and straightening them and welding while wearing gloves and a hood. While employed on offshore rigs in the Gulf of Mexico, Velez was assigned 12-hour shifts of manual labor. In another position, Velez cleaned diesel engines while wearing a solid rubber "wetsuit." If he became too hot during these jobs, Velez would take a break, cool off, and return to work.

Eventually, Velez was hired at Agro Distribution's Hattiesburg facility as a truck driver in February 2000. He stopped working for Agro in April but returned to his position as a truck driver in March 2001. His duties included assisting with manual labor. Wesley Graham, the location manager who hired Velez, testified that everyone knew of Velez's condition and knew that Velez needed to take breaks to cool off. When working for Agro, Velez took breaks as he needed them without requesting permission—no one at Agro ever told him that he could not take a break.

On July 15, 2002, Will Griffin, who replaced Graham as facility manager, scheduled all non-office personnel to load barrels on a trailer at 6:00 a.m. the next morning. Agro would receive drums full of cattle feed, deliver them to customers, pick them up empty, and return them to manufacturers for a deposit refund. When empty, the barrels weigh between 15 and 20 pounds. After being used to feed cattle, the barrels are filthy and smelly—loading them is an unpleasant task.

On two previous occasions, Velez and another individual had loaded barrels. Velez testified that the second time they loaded the barrels, it was the last stop in the afternoon, and they rushed to get through the task, so he became nauseated.

Velez spoke with Griffin and informed him that he could not load the barrels in the morning because it would be too hot and he would get sick.² Griffin told Velez that if he did not participate in loading the drums, he would "suffer the consequences." Griffin did not tell Velez that he could not take breaks, and Griffin did not tell Velez that he had to participate non-stop, only that Velez had to be present to help. When Velez did not show up to assist with the loading, Agro terminated him.

Velez filed a charge with the EEOC on July 19, 2002. By January 2003, before investigating beyond speaking with Velez and Graham, the EEOC classified the charge as "A2." Ben Bradley, the EEOC Area Director for the Jackson Office, explained in his deposition that this means the Commission was "leaning towards a cause determination" and "[the EEOC] probably could either mediate or [the EEOC] could put a cause out there."

LaOuida Small, an EEOC Investigator, performed an on-site investigation on May 22, 2003. The next day, Herbert Ehrhardt, Agro's attorney, mailed a letter to the EEOC expressing concern about Small's investigation. Ehrhardt reported that she made insulting remarks during interviews; indicated disgust for the statements of management witnesses; raised her voice; rephrased witnesses' statements to favor the charge; and selectively recorded portions of the statements. The EEOC never responded to this letter and left Small in charge of the investigation.

On June 17, Small sent a letter to Agro summarizing the evidence obtained. The letter includes factual inaccuracies, including statements that the work was performed on July 15, 2002; that the temperature exceeded 85 degrees;³ and that Agro made "no effort" to accommodate Velez. Agro responded to the letter on July 3, noting these errors and explaining that Velez "routinely performed manual labor in heat far worse than what was expected to accompany this assignment."⁴

Bradley issued a Letter of Determination on July 22. He found that the evidence obtained during the investigation established a violation of the ADA and attached a "conciliation agreement" demanding that Agro reinstate Velez, post a notice, submit to EEOC oversight, and pay Velez $25,629 in back pay, $10,907 in out-of-pocket medical expenses, and $120,000 in compensatory damages.⁵

Small called and left a message for Agro's counsel on Friday, August 15. Agro returned the call on Monday, August 18, and left a message requesting a meeting. The next day, the EEOC sent a letter to Agro announcing that conciliation had failed.

On August 22, Agro responded that it was fully prepared to meet with the Commission and again requested a meeting. The EEOC agreed to reopen conciliation in an August 28 letter but required that any settlement must follow its "Remedies Policy." On September 11, Agro requested clarification as to whether EEOC meant that it would be unwilling to settle without reinstatement, full back pay, and compensatory damages. The EEOC did not respond. Agro then offered $3,500 in settlement. Nearly ten months later, on July 16, 2004, the EEOC replied to Agro, rejecting the offer and insisting upon reinstatement or front pay, back pay, medical expenses, and compensatory damages.

The EEOC filed suit on September 27 seeking $250,000 in damages, which included approximately $80,000 in punitive damages. Following Velez's deposition, the EEOC offered to settle for $42,000. The district granted summary judgment to Agro and awarded attorneys' fees dated from Velez's deposition, "the cut-off date for which the EEOC could be given any consideration for acting with any justification." The EEOC appeals.

II. SUBJECT MATTER JURISDICTION

Although neither party raises the issue of subject matter jurisdiction, this court must consider jurisdiction sua sponte. Howery v. Allstate Ins. Co., 243 F.3d 912, 919 (5th Cir.2001). The district court concluded that the EEOC did not attempt conciliation with Agro in good faith. Several cases have held that the EEOC's failure to conciliate in good faith deprives the federal courts of jurisdiction to hear the EEOC's suit. See, e.g., EEOC v. Magnolia Elec. Power Ass'n, 635 F.2d 375, 378 (5th Cir.1981) ("[T]he EEOC's failure to follow these procedures concerning a respondent deprives a federal district court of subject matter jurisdiction in a suit by the EEOC against that respondent.").

The EEOC has a statutory obligation to attempt conciliation with employers: "[T]he Commission shall endeavor to eliminate any such alleged unlawful employment practice by informal methods of conference, conciliation, and persuasion." 42 U.S.C. § 2000e-5(b). The Commission may bring a civil action only if "the Commission has been unable to secure from the respondent a conciliation agreement." Id. at § 2000e-5(f)(1).

Conciliation is "the preferred means of achieving the objectives of Title VII," EEOC v. Pierce Packing Co., 669 F.2d 605, 609 (9th Cir.1982), and is one of the "most essential functions" of the EEOC. EEOC v. Pet, Inc., Funsten Nut Div., 612 F.2d 1001, 1002 (5th Cir.1980). A good-faith attempt at conciliation requires that the EEOC: (1) outline to the employer the reasonable cause for its belief that Title VII has been violated; (2) offer an opportunity for voluntary compliance; and (3) respond in a reasonable and flexible manner to the reasonable attitudes of the employer. EEOC v. Klingler Elec. Corp., 636 F.2d 104, 107 (5th Cir.1981).⁶

The district court correctly concluded that in dealing with Agro, the EEOC did not attempt conciliation in good faith. By repeatedly failing to communicate with Agro, the EEOC failed to respond in a reasonable and flexible manner to the reasonable attitudes of the employer. The EEOC abandoned its role as a neutral investigator and compounded its arbitrary assessment that Agro violated the ADA with an insupportable demand for compensatory damages as a weapon to force settlement. The district court concludes, "It appears that the Commission dealt in an arbitrary manner based on preconceived notions of its investigator and ignored the attempts of Agro's counsel to engage the Commission in settlement discussions." The EEOC's take-it-or-leave-it demand for more than $150,000 represents the coercive, "all-or-nothing approach" previously condemned by this court in Pet, Inc., 612 F.2d at 1002 (per curiam).

The EEOC's failure to comply with...